Punitive Damages

â… . The framework and primary content of the articleThe research concerning punitive damages includes necessarily main questions as following: (1) what is the punitive damage? (2) why do we need punitive damages? (3) what kinds of conducts should be awarded punitive damages? (4) whether the quantum of punitive damages is appropriate? And under the reality of China, we also must think further: (1) whether the punitive damage system will conflict with our legal system and legal theories? And whether the confliction is unsettle? (2) whether we indeed need the punitive damage system? (3) if we need, how should we to induce it in order to comply with our reality and to retain its advantages?The article researches the punitive damage system around above basic questions, which is divided into five parts: (1) the overview of punitive damages; (2) the history and reality of punitive damages; (3) the justification of punitive damages; (4) the system design of punitive damages; (5) the Chinese approach of punitive damages.The first part introduces the definition, the core characters, the objectives and functions of punitive damages, analyzes the nature of punitive damages, summarizes and comments the main viewpoints which doubts the punitive damage system, and then concludes the natural means of punitive damages, which endeavors to clarify some wrongful understandings about punitive damages, and gains fundamental platform of further research.Modern punitive damages are damages, other than compensatory damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future. And they may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. The core characters of punitive damages display in following two aspects: (1) the meaning of punitive damages is to punish wrongdoers and deter them and others like them; (2) the claim of punitive damages will be satisfied by civil proceedings, and the punitive damage should be paid to victims directly. The former make punitive damages distinguishing with compensatory damages. And the latter make them distinguishing with remedy mechanisms which lie in public law.The objectives and functions of punitive damages which frequently be mentioned can be summarized as following four items: (1) punish defendants; (2) deter similar misconducts; (3) compensate victims; (4) encourage law enforcement. Among them, only the two of punishment and deterrence can be considered as natural functions of modern punitive damage system, which are decisive in that they can provide roots of the punitive damage system and introduce the specific rules design of the punitive damages system. And the other two of compensation and encouraging law enforcement can only be treated as supplementary functions.The question whether the nature of punitive damages is civil or criminal is disputable. Some believe it is quasi-criminal based on its functions of punishment and deterrence, and some maintain it is civil based on its proceedings and lawsuit result. The article observes that under the theoretical premise of precisely division of public and private law, we almost cannot determine the nature of punitive damages precisely, but this should not prevent us to treat them as a right-remedy mechanism which lies in private law.The punitive damages system has been disputable continually from its establishment. Primary criticisms about punitive damages are that they infringe the symmetry of the law; they may provide the plaintiff with an undeserved "windfall"; there's no necessary controlling measures to regular the application of punitive damages; they may hinder our economy from improving; they deviates from the modern development tendency of functions of tort law. It is true that these criticisms point negative influences which the punitive damage system may bring, however, the criticisms aren't absolute truth, nor they cannot be prevented by reasonable system design. So, we cannot deny the punitive damage system based on these criticisms.Generally, the punitive damage system is a right-remedy mechanism which lies in private law. It distinguishes with the punishment mechanisms which lie in public law and depend largely on public materials of law enforcement. Instead, it contains some factors which may help to improve public interests while provide individuals with a method to remedy their rights. It also distinguishes with traditional right-remedy mechanism of private law, because it breaks the absolute division of public and private law, and introduces obvious punitive factors to deter outrageous conducts.The second part observes the history and reality of punitive damages. Form the multiple damages in the Babylonian Hammurabi Code, the early Jewish Damages Law and the Roman law, to the divergence between Civil Law and Common Law about multiple damages in middle ages, to the establishment of punitive damages in Common Law and vigorously development of punitive damages in American law, and to the actualintroduce of punitive damages in modem Civil Law.The Babylonian Hammurabi Code, the Bible and the Roman law all containprecursors to the modern remedy of punitive damages. Although their theory and applyingscope are different, the functions of multiple damages are very similar with modernpunitive damages. Based on this, we can conclude that the idea concerning punitivedamages has existed from ancient age.In order to strength central power of new governments, the Jus Commune had refusedto accept multiple damages. And England had continually used multiple damages to control certain conducts. At some extent, the acceptance may attribute to its nationalcharacter of venerating freedom and hating strong power system.The punitive damages awards in modern sense firstly appeared in English case ofWilkes v. Wood. In the case, the chief judge held that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty to deter from any such proceeding for the future, and as proof of the detestation of the jury to the action itself. After the case, a series of punitive damages judgments concerning infringing dignity of victims had awarded. Until 1964, England's House of Lords severely had limited the availability of punitive damages in Rookes v. Barnard. However, the limitation was too strict to comply with social reality. So, it had not been obeyed by English courts. Generally speaking, the application of punitive damages by English courts is careful.The punitive damage system which initiated in England has largely developed in America. This may attribute to the schizophrenic American legal culture at large extent. Like the English law, the realms of tort and criminal law have been divided, but unlike the English law, the remedial rights-based jurisprudence is still alive. In early American punitive damages cases, courts frequently premised awards on conduct that smacked of willful and wanton indignities. And courts frequently assessed punitive damages against bullies who oppressed the physically weak and socially powerless. Courts also awarded punitive damages to female plaintiffs for assault and battery, rape, and sexual harassment. Judges and juries used the remedy not only to punish and deter sexual assault and harassment, but also to keep the social peace and uphold community mores. Some courts attempts to use punitive damages as a means to stem racial violence. Nineteenth-century judges and juries predicated punitive damages awards on the willful and gross disregard of a plaintiff's rights. By the end of the nineteenth century, however, the doctrine's application shifted away from powerful individuals to large corporations. And during the initial decades of the twentieth century, punitive damages gained an expanded role in consumer protection. Even, beside to be used in tort cases, punitive damages have more and more been used in contract cases. Furthermore, with the expansion of applying scope, the quantum of punitive damages award became higher than before. And many large corporations have felt heave pressure because of the continually expansion of punitive damages, which make them starting a reform campaign in the 1980's. The reformers claimed a fundamental reform of the rules of punitive damages concerning the applying conditions and the quantum-assessment based on the negative influence of punitive damages to social economic development. The campaign gained large success and relevant legislation and judicature of America have begun to restrain the application of punitive damages by some measures.As far as modern Civil Law is concerned, with development of modern society, the theoretical premises established by private law of Civil Law have been outdating. And some outrageous conducts which should be regulated by private law have beyond the principle of compensatory damages. Thus, we can find the schizophrenic attitude of Civil Law towards punitive damages, that is, compensatory demands and noncompensatory reality.The third part analyzes the reasons why do we need punitive damages, that is, discusses the justification of punitive damages. Whether the punitive damage is commonly just is a key criterion to judge whether Civil Law countries should introduce it. The discussion about the justification of punitive damages may help us to comprehend punitive damages.This part begins the discussing premise needed to research punitive damages further under Civil Law background. Firstly, the division of public and private law has been reconsidered, and the conclusion is that in fact, we cannot divide the law into public law and private law precisely. So, we cannot deny the punitive damage system only based on the theory of law-division. Secondly, the article maintains that beside the division of public and private law, more natural pursue of the law is to balance the freedom of individuals and the order of society.Based on the above premises, the article then analyzes the obvious incompetence of traditional principle of compensatory damages with regard to constructing and maintaining good orders of society. In order to make up for the incompetence of compensatory damages, we may use criminal law, administration law or punitive damages. After economic analysis and comprehensive survey, the article concludes that punitive damages can be considered as an optimum instrument. And then, the article summarizes the advantages of punitive damages comparing with compensatory damages, and proves further the justification of punitive damages by using several analytic tools.The fourth part attempts to establish a model of the punitive damage system, and discusses detailed rules of punitive damages around two fundamental aspects, the constitutive requirements and quantum-assessment of punitive damages. By the discussion, the part wants to provide an ideal model of the punitive damages system.About the applying scope of punitive damages, generally, the application of punitive damages to tort cases is considered reasonable, and it is a common tendency. But it is disputable whether punitive damages can be used in contract cases. So, this part focuses on the application of punitive damages to contract cases.With regard to the constitutive requirements, the article surveys specific rules of main Common Law countries (England, America, Australia, New Zealand, and Canada), and concludes by comparing analysis that the core constitutive requirements of punitive damages is that the misconducts of defendants are highly reprehensible. And the appearances of "highly reprehensible" can be summarized as following: (1) deliberate conducts; (2) evaluative conducts; (3) inadvertent conducts. Besides, the types of defendants (individual defendants, professional defendants or institutional defendants) may be treated as a criterion to determine whether a conduct is highly reprehensible. Except the above core constitutive requirement, the constitution of punitive damages also needs other conditions, such as, victims suffer actual damages; causation between damages and misconducts; there's no decisive fault of victims to induce damages.In determining the amount of punitive damages, the article infers a group of calculating rules which are general, and may improve the predictability of the amount of punitive damages according to the core functions of punitive damages by using three main variables, that is, damages suffered by victims, interests gained by wrongdoers, and social losses induced by wrongful conducts. Then, the article observes the developing tendency of rules concerning the amount of punitive damages in Common Law countries, and surveys the tendency by using theories of punitive damages.Finally, the part discusses the insurability of punitive damages which is disputable in Common Law countries. About this issue, the article approves the disposal model of "direct liabilities are not insurable, and vicarious liabilities are insurable" by observing relevant judicial practices in America.The fifth part researches the Chinese approach of punitive damages. As a Civil Law country, our fundamental theories of civil law also refuse to accept the punitive damages system. However, the objective needs of reality can often obligate the legislators to break these traditional restrains and develop new legal mechanisms or rules to solve social problems. In fact, our country has introduced some rules of punitive damages which apply specially in particular fields. And we indeed need to introduce the punitive damage system to help the maintenance of legal order. The only question we should think carefully is that haw to introduce the system appropriately.This part firstly observes the general attitude of us to punitive damages from present legislations. There are clear provisions of "double damages" in Law of the People's Republic of China on Protecting Consumers' Rights and Interests and the relevant judicial explanation. Besides, there are some provisions which indistinctly display the nature of punitive damages at some extent in intellectual property cases. From them, it can be found that we don't refuse punitive damages in any event. But these present provision is defective and far away from using completely the advantages of punitive damages.Then, the article analyzes our special necessity of introducing the general punitive damage system from levels of law and policy. Firstly, the situation of deficiency of good faith needs to be changed in order to maintain good social orders. Secondly, in construction of harmonious society, we need to balance different powers held by different interest groups and need to prevent disputes before produced.Finally, because we have no some judicial systems by which common people can indeed take part in the procedures of judicature and our economic development level is relatively low, the article suggests that we should adopt an evolution approach to introduce the general punitive damages system. Specifically, it can be divided into two aspects, that is, evolution of applying scope and conditions and evolution of quantum-assessment rules.â…¡. The innovations of the article and its insufficienciesA. The innovations of the article(1) Combs through the development history of punitive damages, observes the origin of the idea of punitive damages, the evolution and reality of punitive damages in Common Law, and the reasons why Civil Law refused punitive damages;(2) Reorganizes relevant cases, legislative attempts, and academic research concerning punitive damages in Civil Law countries; analyzes actual attitudes of them to punitive damages and points that Common Law countries hold a schizophrenic attitude to punitive damages of refusing punitive damages in theory and applying punitive damages in judicial practice;(3) For removing the theoretical barriers of Civil Law countries to introduce the punitive damage system, proves systematically the justification and necessity of punitive damages. Beginning with defining clearly the real meaning of division of public and private law, emphasizes the order value of law. And based on this, analyzes the insufficiencies of the principle of compensatory damages to maintain a good order under private law. By primarily using the method of economic analysis, specifically proves the advantages of punitive damages to maintain a good order under private law;(4) Systematically reorganizes the specific applying rules of punitive damages of main Common Law countries. Surveys these rules by using the criterion of realizing the advantages of punitive damages and limiting its negative influences. And then, summarizes an ideal systematic framework of punitive damages;(5) Analyzes special necessity of us to introduce the punitive damage system and the difficulties we may encounter. Then, suggests that we should adopt an evolution approach to introduce the punitive damage system.B. The insufficiencies of the article (1) Because the article stands in a Civil Law country to research punitive damages, the research stresses in removing the psychological barrier of Civil Law countries to accept the punitive damage system. Thus, the discussion of the development process of punitive damages in Common Law countries is slightly insufficient, which needs to improve further.(2) The research of punitive damages in China is just started. Because of short of empirical materials, it is difficult to design precise applying rules of punitive damages of us. Thus, the article can only suggest that we should adopt an evolution approach to introduce punitive damages after maintaining the necessity to introduce it. And the further analysis and proof may need the accumulation of practical experiences.